Mason and National Disability Insurance Agency (NDIS) - [2025] ARTA 270

Mason and National Disability Insurance Agency (NDIS) [2025] ARTA 270 (11 March 2025)
Applicant/s:  Mr David Mason
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/5874

Tribunal:General Member D Heron
Place:Brisbane
Date:11 March 2025

Decision:The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

...............[SGD]..................
General Member D Heron
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – substantially reduced functional capacity criteria not met – whether applicant meets disability requirements – NDIS Act s24(1)(c) – whether applicant meets early intervention requirements – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
CASES
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v NDIA [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
SECONDARY MATERIALS
National Disability Insurance Scheme - Operational Guidelines – Becoming a Participant – Access, (Web Page) < align="center">Statement of Reasons
BACKGROUND

Mr David Mason (the Applicant) is a 58-year-old man who seeks access to the National Disability Insurance Scheme (the NDIS).
Mr Mason lives in a north Queensland suburb, is not employed and is in receipt of the disability support pension (DSP).
Mr Mason does not receive any formal assistance on a day-to-day basis and is supported by his daughter and his former spouse.
He currently lives with his former spouse, renting a room in the home owned by her. While no longer together, she remains a dedicated and active support to Mr Mason.
On 27 March 2023, Mr Mason made an NDIS access request to become a participant in the NDIS. The Access Request Form stated Chronic Regional Pain Syndrome as his main disability and listed depression, neurogenic bladder, mobility and activities of daily living (ADL’s) as his additional disabilities.[1] Mr Mason has clarified that he is seeking NDIS access on the basis of his complex regional pain syndrome (CRPS), depression, neurogenic bladder and dyslexia.
[1] JTB, T7, Access Request dated 27 March 2023 page 47
On 10 May 2023, the National Disability Insurance Agency (the Respondent) determined Mr Mason did not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) as the Respondent was not satisfied his impairments resulted in substantially reduced functional capacity.[2] Mr Mason requested a review of this decision on 26 May 2023.
[2] JTB, T8, Original Decision dated 10 May 2023 page 75
An internal reviewer confirmed this decision on 12 July 2023.[3] On 7 August 2023 Mr Mason applied to the Administrative Appeals Tribunal (AAT) for a review of this internal decision.[4] On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). This is the Reviewable Decision before me.
[3] JTB, TIC, Internal Review Decision dated 12 July 2023 page 16-27
[4] JTB, T1, AAT Application for Review of Decision dated 7 August 2023 page 1-12
The hearing was conducted on 18, 19 and 20 February 2024 with the Applicant and Respondent via Microsoft Teams. In determining this matter, I have considered all the material filed by the parties, including the documents filed in the agreed Joint Tender Bundle (the JTB). Mr Mason was not legally represented and was assisted by Mrs Mason. The Respondent was represented by Mr Sproule of Counsel.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the Act. As Mr Mason’s request for access was made before 3 October 2024, the Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.
LEGISLATIVE FRAMEWORK
The access criteria
Before turning to the issues, I note the following aspects of the statutory regime regarding access to the NDIS. To become a participant, the following access criteria in subsection 21(1) of the Act must be satisfied:
(1)A person meets the access criteria if:
(a)the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
The parties agree that Mr Mason satisfies the age and residency requirements. The two main questions before me are whether Mr Mason satisfies the access criteria in section 24 (the disability requirements) or meets section 25 (the early intervention requirements) of the Act.
Section 24 of the Act states:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
The requirements of subsection 24(1) of the NDIS Act are cumulative and all criteria must be met to satisfy the disability requirements for access into the scheme.
If I find that Mr Mason does not meet the above disability requirements, I will then consider whether he meets the early intervention requirements set out in section 25 of the Act. This section states that:
1.A person meets the early intervention requirements if:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
(d)the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
The relevant rules to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
The Federal Court in ReDrake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 held that relevant government policy should be applied by the Tribunal unless there is good reason not to do so.[5]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
ROLE OF THE TRIBUNAL
The role of the Tribunal is to make the correct or preferable decision based on the material before it. In reviewing the decision:
i.the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[6] and
ii.the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[7]
[6] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 37
[7] Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at 51; QDKH, by his litigation representative BGJF v National Disability Insurance Agency (2021) FCAFC 189
The relevant provisions under the Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
Issues
The parties agree that s24(1)(a), (b) and (d) are met for physical impairments attributable to Mr Mason’s CRPS. The parties also agree that s24(1)(a) is satisfied for psychosocial impairment attributable to depression. All other access criteria remain in dispute in some way under sections 24 and 25 of the NDIS Act before me.
Evidence
In support of his NDIS access request, Mr Mason provided evidence of medical records, reports and letters contained in the JTB. I have considered all the evidence and will refer to the evidence that is directly relevant to my decision.
Also before me is the following material that I have reviewed:
·Dr Adrian Clubb, Urologist letter dated 2 March 2015
·Dr Noelani Bennett, General Practitioner letter dated 6 July 2023
·Dr David Bossingham, Consultant Rheumatologist letter dated 2 October 2012
·Dr Clifton Timmins, Pain Specialist and Anaesthetist letter dated 29 January 2014
·Dr Craig Costello, Neurologist letter dated 15 February 2015
·Dr Amarjit Singh, General Practitioner letter dated 15 February 2023
·Dr Aman Ahuja, Pain Specialist Report dated 30 October 2023
·Ian Wilson, Consultant Neurologist Report undated
·Jenna Kenwright, Psychologist Report dated 6 November 2023
Evidence of A/Prof Dr Roger Goucke
A/Prof Dr Goucke AM, a Pain Medicine Physician engaged by the Respondent, gave oral evidence on the first morning of the hearing, his oral evidence is summarised below:
·Mr Mason’s symptoms reflect Chronic Widespread Pain rather than CRPS
·The Chronic Widespread pain is a permanent impairment
·The medication Antitripolin may be the cause of his cognitive blunting as it is a sleep enhancer and has some capacity to modify pain
·Mr Mason’s cognitive blunting is most likely multifactorial, medication could be ruled out via titration method
·There is a role for psychology in managing pain, noting it would be focussed on management techniques rather than improving function
Dr Goucke also provided a report dated 21 March 2024 from a video consultation he held with Mr and Mrs Mason, summarised as follows:
·Mr Mason can communicate verbally, though his memory is impaired
·Limited fine motor skills and has difficulty doing up buttons, putting on socks
·Care regime and treatments sought are appropriate and reasonable for what is available for someone residing in a rural area of Queensland
·Current medications are appropriate, can cause some cognitive impairment/blunting
·Further psychological input unlikely to improve function – maintenance treatment only
·No further options for chronic pain condition that will improve the situation
·Very likely to remain significantly dependent on daughter and former spouse
Evidence of Mrs Caroline Mason
Mrs Mason gave oral evidence at the hearing, and I found her evidence to be truthful. Her evidence is summarised as follows:
·Mrs Mason and Mr Mason are separated, they were married for 30 years and have adult children and young grandchildren
·Mr Mason currently lives in the home owned by Mrs Mason
·Mrs Mason is employed as a Registered Nurse and works full-time undertaking nursing care with clients both in the aged care system and NDIS
·Doesn’t consider herself categorised as an informal support to Mr Mason as she is working and often not home Monday – Friday, sometimes not until 7pm at night
·She undertakes all the cleaning, laundry, grocery shopping and meal preparation due to Mr Mason’s pain and poor function
·Mrs Mason often on arriving home after 7pm, she can find Mr Mason on the lounge in the same position he was in when she left for work that morning
·On waking she will make food for the day for Mr Mason to have when she is out of the house
·She is finding it more difficult to provide support to Mr Mason as she works fulltime and has her own health issues
Mrs Mason asserts that she does the cooking as Mr Mason is unable to stand for very long, has unstable gait and does not have the fine motor grip or hand strength required to open jars or prepare food. She also undertakes all of the finances, does the bill paying, reading of letters and writing tasks along with all appointment making. She acknowledged that they have ‘moved mountains’ to get all the reports requested of them by the Respondent for this matter.
Evidence of Ms Upham, occupational therapist
Ms Upham, called by the Applicant, is an occupational therapist. She gave oral evidence at the hearing and I found her evidence to be truthful. Her evidence is summarised below:
·Provided two assessments for Mr Mason free of charge, she does not characterise them as full functional capacity assessments
·Mr Mason presents as a very dysfunctional man, with his function decreasing since their first appointment in July 2024
·Mr Mason spends most of his days on the lounge and has no motivation and feels extremely helpless
·Undertook the Becks Depression Scale, MOCA and WHODAS assessments with Mr Mason – agrees these are screening tools only
·Mr Mason presented with extreme social anxiety when they ventured to the shopping centre and had to leave the venue suddenly unable to complete the shop
Ms Upham provided the Tribunal with her independent assessment report dated 30 July 2024, following an assessment with Mr Mason on 25 July 2024 and report dated 19 December 2024. Ms Upham conducted 5 visits via in-person assessment over a period of 4 weeks and in a range of activities in-home, in the community and at a local shopping centre and library. Actions observed and assessed were Mr Mason’s activities of daily living, self-care, driving, making a light snack, grocery shopping and functional literacy activities.
Ms Upham notes Mr Mason was unable to open the lids off of jars, had difficulty lifting a jug of liquid and difficulty due to pain and swelling in fingers using a knife to put spread on bread. She described Mr Mason as having poor physical endurance due to increasing pain and could not reach his lower extremities to wash. Ms Upham reports a ‘constant vigorous tremor’ in Mr Mason’s legs throughout the seated parts of her assessments.
Ms Upham detailed that Mr Mason presents as extremely depressed, exasperated by extensive medical investigations, the unclear diagnoses, constant trialling of medications and therapies with no apparent curative effect, constant pain, and perceived loss of functional capacity.
Ms Upham observed Mr Mason driving to the local shopping centre noting he drove cautiously and slowly and she acted ‘as the co-driver’. She notes that once they arrived Mr Mason could only remember 2/4 items from the list and that he appeared agitated ‘needing to leave hurriedly’. She states that he markedly declined in the store and needed the trolley for support due to worsening pain. She notes that when agitated Mr Mason could not problem-solve or plan well to undertake activities such as sequencing to make a sandwich.
Regarding self-care she notes Mr Mason’s difficulties with fine motor skills, buttons and zippers. He uses the wall for balance when toileting and showering. She did not actively observe the self-catheterisation, though she reports that Mr Mason explained to her it was increasingly difficult to complete due to his poor hand function.
She took Mr Mason to the local library and states Mr Mason cannot read headline words on a newspaper, cannot recognise familiar words such as ‘the’ and ‘on’ but can recognise some letters and sounds. She states he has no ability to text or type on a mobile phone, utilising voice to text and that he cannot tell the time via clock face but uses his own modified method with patterns to ascertain time of day. Ms Upham expresses that his poor literacy is linked to Mr Mason growing up in foster care in the United Kingdom.
Ms Upham noted her opinion that Mr Mason was a high suicide risk, has an unsteady and cumbersome walking pattern, chronic pain in that ‘he could barely speak to me’ and experiences sensory changes such as burning, partial loss of sensation in arms and legs and uncontrollable movements especially in his legs.
In Ms Upham’s second report dated 15 November 2024 she states that Mr Mason has poor communication skills, very little confidence communicating with others, difficulty explaining things and feels he is always misunderstood and that there is a flat affect to all conversations noting it may be a medication effect. She states Mr Mason’s ‘condition and functional capacity essentially remains the same with the worsening of symptoms and functions.’[8]
[8] JTB, A7, Report of Ms Upham dated 19 November 2024 page 174
During her in-person assessment Ms Upham took videos of Mr Mason demonstrating his hand grip function, his gait and describing pain levels. During questioning by the Respondent, the Tribunal was shown one video submitted with Ms Upham’s report of Mr Mason undertaking daily tasks. The beginning of a video showed Mr Mason using the kettle then Ms Upham said the words ‘to show your poor hand function’. The Respondent made the assertion that Ms Upham was advocating for Mr Mason. Ms Upham disagreed with this characterisation as advocacy, but acknowledged it was her opinion that he could greatly benefit from support through the NDIS.
Evidence of Mr David Mason

Mr David Mason gave oral evidence at the hearing on the morning of the second day. I found his evidence to be truthful. It is summarised as follows:
·He was born in the United Kingdom and went into foster care early in life, remaining in care until he was approximately 17 years old
·Attended Corley Residential School, where they tried using different coloured glasses and paper and other methods for literacy however nothing was successful
·Was given the dyslexia diagnosis at school and does not have an ability to read or write
·Utilises voice to text on his mobile phone, and other voice commands to communicate
·Around 2012 diagnosed with the Chronic Regional Pain Syndrome
·Ceased paid employment due to this symptomology around 2018
·He was working as a volunteer at an animal refuge up until late 2023, stopped due to pain and mobility issues
·Used to enjoy fishing, gardening and woodwork, cannot participate in any of these due to the pain, mobility issues and depression
·Suffers from long-standing depression, suicide attempt February 2023
·Currently seeing a new psychologist every second Friday and feels he can relate well, as compared to other treaters in the past
·Becoming difficult to self-catheterise every four hours due to poor hand control
Mr Mason gave oral evidence that he experiences the following symptoms relating to his pain condition:
·Widespread burning pain and sensation in hands, feet and back
·Fingers have a tingling sensation
·Gross tremor in legs when not standing
·Body is sensitive to touch, hurts to physically touch things
Mr Mason also provided the Tribunal with a letter dated 4 April 2024 where he and Mrs Mason stated they disagreed with the assessment report of Ms Nicholls. Their letter states that the report of Ms Nicholls has inconsistencies, personal opinions and assumptions and did not represent Mr Mason in an unbiased manner. They stated that her report provided little to no consideration of his recollection of events.
Throughout the hearing Mr Mason was seated on the lounge, often listening to proceedings with his eyes closed, his leg tremors visible in both legs throughout the three-day hearing. He did state that by the afternoons he understandably was experiencing exhaustion. He was able to answer questions and participate in the three day hearing, needing to stand and stretch at certain intervals.
Evidence of Ms Anna Nicholls, occupational therapist
Ms Nicholls, the Respondent’s independent occupational therapist, gave the following oral evidence on the second day of the hearing as summarised below:
·She assessed Mr Mason in January 2024 when he was living at his former home
·Mr Mason was able to walk 150-200 metres unassisted
·He could complete sit to stand transfers bracing on furniture or walls
·He showed a good range of motion in his joints and upper limbs
·His grip strength was good, noting his right hand had less grip strength
·He could carry and hold a light laundry basket
·Mr Mason responded appropriately to questioning in the assessment, with no social interaction or communication difficulties noted
·Mr Mason took on ‘a bit of a sick role at first’ at the beginning of the assessment but that eased as time progressed
·Catheter equipment was not seen in toilet or bathroom, was not shown the equipment when asked to view this
In her report dated 31 March 2024 she refers to Mr Mason being able to walk unassisted, demonstrating about 150 meters of walking during the assessment before self-limiting due to high pain. She opined he transfers from chair to standing, on and off the toilet without the assistance of another person and could get in and out of his bed independently holding the side wall. Further he demonstrated prolonged sitting during the assessment and ‘spoke throughout the assessment…had no problems listening to the questions and answering them appropriately’.[9]
[9] JTB, R3, Report of Ms Nicholls dated 31 March 2024, page 228
Ms Nicholls asserted in her report that the Applicant did not indicate he had any problems with socialising. Ms Nicholls also provided a clinician rated score of 35 out of 35 for the domain of ‘social cognition’ on the Functional Independent Measure (FIM) demonstrating complete independence.[10] Further she noted no issues with Mr Mason understanding or answering her questions during the assessment.
[10] JTB, R3, Report of Ms Nicholls dated 31 March 2024 page 290
The catheter equipment not being visible in the bathroom during Ms Nicholls assessment and Mr and Mrs Mason being unable to physically show Ms Nicholls this equipment, along with Ms Nicholls opinion therefore that Mr Mason didn’t self-catheterise was a point of contention during oral evidence.
During questioning by Mr and Mrs Mason, Ms Nicholls noted she had made some commentary about their living arrangements, Mrs Mason’s work hours and nature of employment and opinions about Mr Mason’s suntanned legs. Mr and Mrs Mason submitted that Ms Nicholls opinions about these matters were factually wrong, and therefore asked whether it changed her opinion of Mr Mason’s function. Ms Nicholls said these matters did not change the opinion she had provided regarding Mr Mason’s functional capacity.

Consideration of Claims and Evidence

The NDIS was designed to support a particular subset of people with significant and permanent disabilities, not all people with disability. The NDIS was not designed to replace state and territory government run disability programs or mainstream services. Explicably therefore the NDIS has strict access criteria and requirements that need to be considered and met for a person to become a participant of the scheme. The Tribunal in its role is required to undertake a ‘fact-finding task’[11] on the available evidence with a relatively high degree of precision and be positively satisfied[12] that Mr Mason meets either the disability requirements or the early intervention requirements, for access to be met.
[11] National Disability Insurance Agency v Davis[2022] FCA 1002 at 42
[12] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201 at 55
Impairment
The first criteria that needs to be met is that a person has an impairment. Impairment is generally understood as involving the loss or damage to a physical, sensory or mental function.[13] In this way, the scheme adopts a functional based view, rather than looking at the diagnosis of a person. A person’s disability, disease, condition or function must be attributable to an impairment under one or more of these categories:
·Physical impairment
·Intellectual impairment
·Cognitive impairment
·Neurological impairment
·Visual impairment
·Hearing impairment
·Psychosocial impairment
[13] Mortimer J in Mulligan v National Disability Insurance Agency [2015] FCA 544
As Mr Mason was not legally represented in the hearing, he and Mrs Mason were given latitude in the proceedings. Mr and Mrs Mason noted at the outset of the hearing they did not understand the law and did not understand the NDIS access criteria. Mr and Mrs Mason noted they had only been able to receive very minimal assistance via legal aid regarding their matter. On this basis understandably they did not particularise or positively assert any impairment or impairments under the list in paragraph 47 above, relying instead on diagnoses by name during the hearing.
The Respondent accepts in its Statements of Facts, Issues and Contentions that the Applicant meets the disability criteria under paragraph 24(1)(a) of the Act on the basis of impairments attributable to physical and psychosocial impairments.[14]
[14] JTB, S1, Respondent Statement of Facts, Issues and Contentions dated 5 November 2024 page 284
Ms Nicholls in her report and during the hearing, asserted her opinion that Mr Mason doesn’t self-catheterise. This was based on the circumstances that as she was not given the opportunity to view the equipment when she was in his home undertaking her assessment. Ms Nicholls view is inconsistent with the evidence of Mr and Mrs Mason as well as the view of Ms Upham. The Tribunal was shown the catheter equipment during the hearing by Mr Mason. The Tribunal found the lived experience evidence of Mr and Mrs Mason persuasive that he does self-catheterise, due to the diagnosis of neurogenic bladder provided to him by Dr Clubb in 2015.
On the evidence before me, I agree that Mr Mason has a disability attributable to a physical impairment due to his pain condition and his neurogenic bladder. I accept he also has a disability attributable to a psychosocial impairment due to his depression, therefore paragraph 24(1)(a) of the Act has been met for those impairments.
Mr Mason’s General Practitioner Dr Bennett provided in his letter that Mr Mason has a diagnosis of dyslexia and that he has previously participated in occupational and speech therapy.[15] The Tribunal notes that Dr Bennett did not give evidence at the hearing, and therefore his evidence was unable to be tested. The Tribunal further notes that Dr Bennett is not a neuropsychologist or speech pathologist clinically trained to diagnose specific learning disabilities. The Tribunal does not have evidence before it that identifies a permanent impairment from dyslexia attributable to one or more of the below categories:
·Physical impairment
·Intellectual impairment
·Cognitive impairment
·Neurological impairment
·Visual impairment
·Hearing impairment
·Psychosocial impairment
[15] JTB, T11, NDIS Supporting Evidence Form Dr Bennett dated 6 June 2023 page 93
Ms Upham raised the issue that it would be extremely difficult for Mr Mason to obtain a comprehensive assessment of a specific learning disorder/dyslexia in the rural area Queensland that he currently resides in. She states ‘I have been with David in many therapy sessions where subjectively he is unable to read or write or perform simple mathematical tasks. I can say categorically David has no functional literacy skills’.[16] The Tribunal also notes Mr and Mrs Mason’s frustration that their lived experience of his illiteracy is not sufficient probative evidence to satisfy that there is an impairment. The Tribunal notes that equally, there must be a minimum level of viable evidence upon which its findings can be made.
[16] JTB, A7, Ms Upham report dated 19 November 2024 page 175
As the decision-maker I am satisfied on his lived experience evidence that Mr Mason cannot read or write. What I am not satisfied on is that his illiteracy gives rise to an intellectual, cognitive, visual, psychosocial or neurological impairment. I am not satisfied as I do not have any contemporary formal evidence stating this from a suitably qualified treater, such as a neuropsychologist or an educational psychologist. It is for this reason that I cannot consider dyslexia further as an impairment under the access criteria 24(1)(a).
Permanency
To meet the disability requirements under paragraph 24(1)(b) of the Act the impairment or impairments are required to be permanent. Fluctuations in intensity or impairments that are variable can still be considered permanent, as subsection 24(2) of the Act provides that impairments that vary in intensity may be permanent, and the person may be considered likely to require support under the NDIS for the person’s lifetime, despite this variation.
Rule 5.4 of the Access Rules states that permanency is established if there is no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment. The definitions of ‘known, available and appropriate

evidence-based clinical, medical or other treatments likely to remedy’ have been clarified in National Disability Insurance Agency v Davis [2022] FCA 1002.[17] I’ll consider each impairment in turn.
[17] National Disability Insurance Agency v Davis [2022] FCA 1002 at 137-139
Pain Condition
Dr Ahuja states that ‘the descriptors of pain have a strong neuropathic overlay with a feeling of pins and needles, numbness, thumping sensation, made worse with leg movement and resting. The pain has been progressively getting worse and involving more and more areas’.[18]
[18] JTB, A2, Letter Dr Ahuja dated 30 October 2023, page 110
The Tribunal accepts the evidence of A/Prof Dr Goucke in his report that there are no other specialities that could be engaged offering treatment options for Mr Mason’s physical impairments due to the pain condition CRPS.[19] A/Prof Dr Goucke notes his opinion is that the diagnosis is Chronic Widespread Pain rather than CRPS.[20] The Tribunal is satisfied that the pain condition diagnosis terminology may vary between treaters.
[19] JTB, R4, Report of A/Prof Goucke, page 251
[20] JTB, R4, Report of A/Prof Goucke, page 250
Having regard to Mr Mason’s treatment history including pharmacotherapy, orthopaedic surgeons, physiotherapy and pain specialists I accept on the evidence before me that there are no further medical or evidence-based treatments that may remedy his physical impairment from the pain condition.[21] I find the pain condition gives rise to a permanent physical impairment under paragraph 24(1)(b) of the Act.
[21] JTB, T1B, Letter Dr Noelani Bennett dated 6 July 2023 p15
Neurogenic Bladder
Regarding the neurogenic bladder A/Prof Dr Goucke states that Mr Mason ‘has been self-catheterising because of a dysfunctional bladder. He has no sensation of a full bladder and will, if he does not catheterise four hourly, experience incontinence. He uses incontinence pads intermittently’.[22] During his oral evidence Dr Goucke explained he did not assess Mr Mason in-person and that this assessment was self-reported to him by Mr Mason and detailed in Mr Mason’s reports he reviewed in preparing for his assessment.
[22] JTB, R4, Report of A/Prof Goucke page 241
As stated, the Tribunal is looking at whether the impairment is permanent, not the medical conditions or diagnoses. Commenting on rule 5.4, in Davis Mortimer J stated that:
a.“known’” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment.
b.“available” should be understood as meaning available to a particular individual.
c.“appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo.
d.“remedy” should be understood to mean something approaching a removal or cure of the impairment.[23]
[23] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at 136-138
Dr Clubb’s 2015 letter states that ‘I have discussed the possibility of him requiring either a anticholinergic or Botox injections in light of longer term concerns with regards to his upper tracts’.[24] In oral questioning Mr Mason confirmed he had not undertaken any further treatments for the neurogenic bladder or seen a urologist to discuss the impairment since his 2015 assessment and diagnosis with Dr Clubb. I note in an email dated 12 October 2023 Mrs Mason explains she has contacted a list of medical professionals for appointments and notes ‘contacted urology dept appointment not given to date’.[25]
[24] JTB, T1A, Letter of Dr Clubb dated 6 March 2015 page 13
[25] JTB, A1, Email from Mrs Mason dated 12 October 2023 page 107
Rule 5.6 states that:
An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).[26]
[26] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
In the decision of Davis, Mortimer J (as she then was) said of the meaning of “permanent” in s 24(1)(b):
The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.[27]
[27] National Disability Insurance Agency v Davis [2022] FCA 1002 at 130
Mortimer J said the rules in r 5.4 and r 5.6 were exclusionary, in that ‘if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting the permanency criterion in s 24(1)(b)’.[28]
[28] Davis at 75
The Tribunal notes the evidence of the Masons that Dr Clubb provided the diagnosis of neurogenic bladder, discharging Mr Mason with the treatment of self-catheterising every four hours in 2015. No further evidence was provided from the time period 2015 – current. Mr Mason confirmed he had not undertaken any further assessment or treatments for the neurogenic bladder or had seen a urologist to discuss the impairment since his 2015 assessment and diagnosis with Dr Clubb.
I cannot be satisfied on the evidence before me whether Mr Mason has undertaken all known, available and appropriate treatments for the impairment to be considered permanent by the Tribunal. For this reason, the neurogenic bladder cannot be considered further, as it does not meet 24(1)(b) of the Act.
Depression
I must be satisfied on the evidence before me whether Mr Mason’s psychosocial impairment has been optimally treated and his condition is stabilised, for it to be considered permanent. The Tribunal accepts the evidence of Dr Noelani Bennett that due to Mr Mason’s pain from CRPS his depression has been refractory to treat.[29] The evidence shows that Mr Mason has taken antidepressants, undertaken psychotherapy and has engaged with psychology over the years. I accept the evidence of Dr Timmins that Mr Mason’s depression is driven by the progressive nature of his CRPS condition.[30]
[29] JTB, T1B, Dr Noelani Bennett letter dated 6 June 2023 page 15
[30] JTB, T4, Letter Dr Timmins dated 29 January 2014 page 41
In oral evidence Mr Mason described he was diagnosed with depression in around 2012 by a psychologist. There is a reference under the heading ‘History of Doctors and Specialists’ prepared by the Masons to seeing a psychologist in March 2013, however there are no records provided from this treater.[31]
[31] JTB, T14, Applicant’s Statement Medical History undated, page 106
The evidence shows that Mr Mason completed a Mental Health Care Plan with his General Practitioner Dr Bennett on 23 October 2023, where she lists his medications as[32]:
·Amitriptyline hydrochloride
·Creon
·Esomeprazole
·Gabapentin
·Prednisone
·Sifrol
[32] JTB, A3C, Mental Health Care Plan DATED 23 October 2023 page 128
Mr Mason confirmed at the hearing that he is currently taking anti-depressants and explained that he has been put on a stronger dose recently.[33] Dr Bennett his General Practitioner in her letter dated 6 June 2023 describes ‘his depression is being treated with medication and he has seen psychologists as well’.[34] Dr Bennett was not called as a witness to give oral evidence at the hearing. Ms Upham’s report dated 31 July 2024 states ‘current medications past 12 months, 75mm Amitriptyline with little effect on depression’.[35] Mr Mason in his oral testimony described that he has started to see a new psychologist in the last two months regarding his depression and describes that he has built a solid connection with this professional. The Tribunal does not have any information regarding whether these appointments are considered maintenance therapy or active treatment.
[33] Transcript day two, 50.05
[34] JTB, T1B, Dr Bennett letter dated 6 June 2023 page 14
[35] JTB, A6, Report Ms Upham dated 31 July 2024 page 149

Dr Goucke stated in his oral testimony that Mr Mason wasn’t on any anti-depressants and opined that while technically amitriptyline is an anti-depressant, it was for his pain. Dr Gouke’s opinion was that amitriptyline is ‘an old fashioned antidepressant…a mild antidepressant affect, but it is not an anti-depressant that will be currently widely used either by psychiatrists or in pain medicine’.[36] He continued that ‘it tends to only work in high doses, so above 100 milligrams’.[37] In his report he states ‘Mr Mason does not currently appear to be on an antidepressant, either an SSRI or an SNRI. There is some evidence for the use of Duloxetine or Venlafaxine for the treatment of depression in people with chronic widespread pain. These medications may have been trialled in the past. They could be considered by Dr Bennett. A dose of Duloxetine will start at 30mg and increase to perhaps a maximum of 90mg over a two-month period’.[38]
[36] Transcript day one 7:32
[37] ibid
[38] JTB, R4, Response to targeted questions by Dr Goucke dated 21 March 2024 page 248
The Tribunal notes Dr Goucke was called to give evidence as a pain specialist regarding the pain condition, its permanence and what functional impairments flow from it, rather than a specialist in psychosocial impairments.
The Respondent contended that Mr Mason’s mental health issues are currently acute rather than stable and that Mr Mason’s recent psychology appointments are evidence showing that the condition is still being treated, thus his baseline is not yet known. The Respondent states that there has been no detailed treatment history provided outlining the treatment undertaken, frequency, duration and outcomes from a treating specialist for the psychosocial impairment.
Dr Anuja’s letter of 9 October 2023 states ‘there is a significant mental health impact of the current clinical situation, as well as depression. He has been suggested to start seeing a psychologist which is still awaiting the start of the management approach’.[39] Dr Anuja’s letter also states ‘he currently uses Gabapentin 800mg 3 times a day and Amitriptyline 75mg at night to assist with the neuropathic pain, however the response is less than optimal’.[40]
[39] JTB, A2, Dr Anuja letter dated 30 October 2023 page 111
[40] ibid
I note in an email dated 12 October 2023 Mrs Mason explains she has contacted a list of medical professionals for appointments and notes ‘appointment with Penny McKay psychologist on 24/01/2024. Advised need appointment sooner due to time restrictions. On cancellation list will be contacted if an available appointment comes up’.[41]
[41] JTB, A1, Email from Mrs Mason dated 12 October 2023 page 107
Mr Mason was able to meet with a psychologist in private practice named Ms Jenna Kenwright who provided an assessment in support of his NDIS application dated 6 November 2023. The assessment states ‘David has been referred to me for long-term depression and disability with multiple complex health conditions. He saw me for the first time today for an assessment’.[42] The assessment focussed on the functional impacts from his pain condition but did note, ‘he is becoming more despondent about his current circumstances and without support it is very hard for him to improve his quality of life’.[43]
[42] JTB, A4, Jenna Kenwright Psychologist dated 6 November 2023 page 136
[43] ibid
An email from Mrs Mason dated 6 November 2023 states ‘Dr Bennett contacted a neurologist through smart referrals Qld Health for guidance on managing Dave's continued pain and difficulty sleeping, commenced on clonazepam 0.5mg’.[44] The attachment from Neurology Service clinical advice states ‘there is evidence for clonazepam 0.25-1mg at night. The risk of sedation would need to be assessed and counselled for’.[45]
[44] JTB, A3, Email from Mrs Mason dated 6 November 2023 page 112
[45] JTB, A3A Smart Referral from Cairns HHS to Dr Bennett dated page 115
79.To effectively find that an impairment is permanent, the Tribunal must have sufficient evidence showing that an impairment has been optimally treated and stabilised. Evidence must also outline that the baseline level of functioning has been established before an accurate determination of functional capacity can be made. The NDIS website on its psychosocial disability evidence page explains[46]:
[46] Types of disability evidence | NDIS
Disability evidence
A statement from a treating health professional, including information about:
·how long they have been working with you
·evidence of the mental health condition, a diagnosis is helpful if available
·treatments you have explored and any you have not tried (with reasoning)
·how your mental health condition impacts on your everyday life (a functional assessment may be helpful).
Functional assessments (in order of preference):
These can be provided by a treating health professional or other people as listed above:
1.    Life Skills Profile 16 measure (LSP-16)
2.    Health of the Nation Outcomes Scale (HoNOS)
3.    World Health Organisation Disability Assessment Scale (WHODAS).
It also explains that ‘the Evidence of Psychosocial Disability form is the preferred form for applicants with psychosocial disability’.[47]
[47] Applying to the NDIS for people with psychosocial disability | NDIS
The Tribunal does note that both Occupational Therapists undertook some testing of Mr Mason regarding his psychosocial impairment. Ms Nicholls undertook the self-reporting tool Depression and Anxiety Stress Scale (DASS) with the result being ‘Extremely Severe’ for Mr Mason’s depression. Ms Upham undertook the Becks Depression Scale and the results were ‘Extreme Depression’.[48] Ms Upham also undertook the MOCA indicating ‘significant cognitive impairment’[49], and the WHODAS with the results ‘extreme difficulty/cannot do’ in most categories. On questioning by the Respondent Ms Upham was unable to explain the method she undertook in adjusting the MOCA scores to factor in Mr Mason’s illiteracy.
[48] JTB, A6, Report of Ms Upham dated 30 July 2024 page 150
[49] ibid
81.The evidence provided by Dr Bennett, Ms Kenwright and Mr and Mrs Mason does not establish timelines with a history of treatment showing that the psychosocial impairment is likely to remain regardless of ongoing treatment or interventions provided. The evidence does not establish that all appropriate and available treatment likely to remedy have been engaged, and that this current psychosocial functioning is Mr Mason’s baseline. The Tribunal is not stating that remission of his depression is likely, only that evidence stating no further treatment options are recommended to remedy the psychosocial impairment and that his function is stabilised are needed for the Tribunal to make a positive finding on permanency.
I am not satisfied Mr Mason has exhausted all known, available and evidence-based treatments for his psychosocial impairment that would satisfy 24(1)(b) of the Act.
Substantially Reduced Functional Capacity
I next need to consider whether the physical impairment from the pain condition results in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management.
For this task I turn to rule 5.8 of the Access Rules, a deeming provision[50] for substantially reduced functional capacity. I will need to consider whether the Applicant’s circumstances are captured in this provision. Rule 5.8 states that:
[50] Madelaine and National Disability Insurance Agency (2020) AATA 4025
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Considering Mr Mason’s situation under the deeming rule is only part of the statutory task, if this provision is not met, I will progress to consider whether his functional capacity is substantially reduced in any of the six domains.[51]
[51] Mulligan and NDIA [2015] FCA 544 at 77
As I’ve stated, the term ‘substantially’ in the context of ‘reduced functional capacity’ carries a significant threshold provided for by the Act.[52] Paragraph 24(1)(c) calls for more than ‘to simply show that functioning in the relevant area is affected’.[53] I rely on the explanation provided in Rooney and National Disability Insurance Agency [2021] AATA 3523[54] that the word ‘substantially’ takes its ordinary meaning.
[52] Rooney and National Disability Insurance Agency [2021] AATA 3523 at 22
[53] Davis and National Disability Insurance Agency (2023) AATA 1437 at 65
[54] Rooney and National Disability Insurance Agency [2021] AATA 3523
The Agency accepts that Mr Mason experiences some reduction in functional capacity however asserts that he does not experience substantially reduced functional capacity. Mr Mason submits that he has substantially reduced functional capacity in all six domains. Accordingly, I will go through my consideration for each life domain.
Communication
The communication domain is focussed on how a person is able to communicate and express themselves compared to other people their age. The central point is on how a person is understood and how they understand others.[55] These descriptors taken from the Operational Guidelines are a good starting point in considering this domain.
[55] NDIS Operational Guideline – Access – Disability Requirements
For procedural fairness in my consideration of whether Mr Mason’s functional capacity is substantially reduced, I must only look to the impairment that I have held as permanent, being the physical impairment from the pain condition. This is a strict task in that I cannot consider the neurogenic bladder, depression nor the dyslexia.
There is inconsistent evidence presented regarding Mr Mason’s ability to communicate. Ms Upham reports Mr Mason has very little confidence in communicating with others, cannot follow conversations, and will have a family member with him to communicate for him.[56] While Ms Nicholls during her assessment of Mr Mason observed that he demonstrated good comprehension of the questions, had no difficulties understanding the concepts or discussion topics and was able to explain the impact of his condition without difficulty.[57] A/Prof Dr Goucke also noted in his oral evidence that Mr Mason could answer questions and could communicate verbally with him during his assessment.
[56] JTB, A6, Report of Ms Upham dated 30 July 2024 page 154
[57] JTB, R3, Report of Ms Nicholls dated 7 March 2023 page 223
During the hearing Mr Mason could orally recall facts about his conditions and answer questions related to his homelife and give logical sequencing regarding questions about his schooling life and employment history.
Ms Kenwright, psychologist in her letter mentions that Mr Mason ‘can communicate verbally to an extent. He is able to take perspective. However he finds that he avoids communicating with others due to fear of judgement from others’.[58]
[58] JTB, A4, Jenna Kenwright Letter dated 6 November 2023 page 136
In considering the totality of the evidence I find Mr Mason can communicate his wants and needs to others and can be understood by them. I am satisfied on the evidence that Mr Mason is able to express himself, and he is able to understand people, and be understood. Accordingly, I find Mr Mason does not have a substantially reduced functional capacity to undertake communication activities and that the deeming provision does not capture his circumstances.
Socialising
At the hearing held over three days Mr Mason appeared and gave oral evidence and demonstrated an ability to interact within the social limits accepted by others. He explained that he finds himself feeling angry about his current situation and his function. He explained that he has ‘never been a quitter’ and that he will continue to try and do what he can for himself. He described that he does have a good friend who visits but even then, he finds it hard to find any motivation to be social. He explained that he finds it difficult to make eye contact as he feels ‘worthless and that he is constantly being judged’. He expressed frustration and explained as an example that he might think and want to go and do an activity but that his ‘head just doesn’t let him’.
Ms Upham describes in her second report that Mr Mason having extremely low self-confidence and social anxiety around strangers quoting Mr Mason saying that ‘I feel like I am being continually judged even when I am at the shopping centre’.[59]
[59] JTB, A7, Report of Ms Upham dated 19 November 2024 page 175
In the handwritten letter undated by Mrs Mason she states that his circumstances ‘have resulted in him socially isolating himself and having little social interaction’.[60] The evidence is that Mr Mason ‘loathes’ social gatherings and requires the prompting of another person to engage in the most minor of social niceties.[61] On the evidence I accept that Mr Mason does not choose to engage in social interactions, however the domain requires an inability to effectively socialise, consistent with the principle established in Madelaine.[62] The test requires incapacity with respect to skills for social interaction rather than motivation or preferences about social interactions to engage with.
[60] JTB,T13, Handwritten letter Mrs Mason undated page 102
[61] JTB, S1, Respondent’s Statement of Facts, Issues and Contentions dated 5 November 2024 page 290
[62] Madelaine and National Disability Insurance Agency [2020] AATA 4025
In Kilgallin and National Disability Insurance Agency the Tribunal observed the following in relation to the threshold requirements for ‘social interaction’:
‘Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.’[63]
[63] [2017] AATA 186 at 18
Mr Mason states that Mrs Mason whom he resides with and his daughter provide him assistance. Mr Mason has adult children and grandchildren and mentioned that family members do visit and do telephone.
Having considered the evidence I have formed the view that Mr Mason does not have substantially reduced functional capacity in the socialising domain and the deeming rule does not capture his circumstances.

Learning

The domain of learning includes understanding and remembering information, learning new things and practicing and using new skills. Learning does not include educational supports.
Ms Nicholls in her assessment undertaken on 31 January 2024 detailed that Mr Mason was able to have Mrs Mason read him the questions to the questionnaire and he was able to verbally respond to answer them.
A/Prof Dr Goucke states that during their video assessment Mr Mason ‘could answer questions, but his memory of the large number of events of the many years was sometimes hazy and he was prompted by Caroline’.[64] Dr Goucke suggested in his oral evidence that Mr Mason may have some cognitive blunting causing memory haziness from the pain medication he was currently taking and that this could be reversed through titrating the drug and monitoring the effects.
[64] JTB, R4, Report of A/Prof Goucke dated 21 March 2024 page 241
Ms Upham detailed that Mr Mason can turn his mobile phone on and off, can copy a number to dial and can recognise familiar symbols and logos. She states he has no ability to text or type and uses the audio function only if needing to send messages. She states Mr Mason has cognitive decline and that his depression and anxiety coupled with his lack of literacy skills make learning new things difficult. Ms Upham stated that Mr Mason can recognise and write his name however he was unable to write the alphabet. She states learning new tasks creates extreme anxiety for Mr Mason.
In oral testimony Mr Mason was able to describe how in his younger days he taught himself road directions based off landmarks versus reading maps or street signs, how he had developed his own modified way to tell time on an analogue clock and how he had modified and adapted to be able to sign his name.
It is my view that to comprehend familiar symbols and logos with his phone, learn how to use audio commands to communicate and follow road rules to drive a car confirms that Mr Mason does not require assistance in the domain of learning, the deeming rule is not engaged and it follows therefore that paragraph 24(1)(c) is not met in relation to the domain of learning.
Self-Management
The Operational Guidelines describes self-management as the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself. This includes completing daily tasks, making decisions, problem solving, and managing finances. The focus of self-management is on a person’s mental and cognitive ability to manage their life, not their physical ability to do these tasks.[65]
[65] NDIS Operational Guidelines – self management
Mr Mason states he is wholly dependent on Mrs Mason to do any form filling, computer work and writing tasks. Mr and Mrs Mason both confirmed in their oral evidence that this has been the usual practice throughout their lives together, even before the pain condition. Mr Mason confirmed that all paperwork and management of his NDIS application and subsequent Tribunal application have been done by Mrs Mason or his daughter.[66]
[66] JTB, R4, Report of Ms Nicholls dated 21 March 2024 page 239
Mr Mason describes that he has always relied on Mrs Mason to ensure bills are paid. The Respondent asked who was responsible for paying bills and handling finances historically throughout their lives together and Mr Mason explained that Mrs Mason has always undertaken this task, though she will read the bills out loud and say for example the electricity is due and tell him the amount.
Dr Noelani Bennett in the NDIS Supporting Evidence Form under self-management states ‘David needs assistance with managing his finances, medical appointments and other administrative day to day tasks – he has difficulty navigating this due to his dyslexia, his reduced concentration from his depression and from his reduced effort tolerance. David would not be able to manage day to day issues at the home (e.g. plumbing problems) – his wife has had to take on this role completely’.[67]
[67] JTB, T11, NDIS Supporting Evidence Form dated 6 July 2023 page 95
The Tribunal can only find in respect to the pain condition when looking at Mr Mason’s ability for self-management – as it is the permanent impairment. Dr Goucke has explained that Mr Mason’s medications may cause cognitive blunting, he states this can be looked at via dosing titration. While I accept that the Applicant’s ability to self-manage is impacted by his pain and fatigue reduced effort tolerances, I am not satisfied that his impairments meet the threshold of resulting in substantially reduced functional capacity.

In oral evidence Mr Mason explained that he has recently been seeing a new psychologist. In describing these interactions, he did not detail that he required the support of another person when participating in these appointments. Ms Upham states she considers that Mr Mason has the capacity to improve his decision-making skills for less complex tasks.[68]
[68] JTB, A6, Report of Ms Upham dated 30 July 2024 page 160
On the evidence I am not satisfied that Mr Mason has substantially reduced functional capacity with regard to self-management in respect to his physical impairment nor that the deeming rule is engaged.
Self-care
Self-care relates to activities of personal care, hygiene, grooming, feeding oneself, and the ability to care for one’s own health care needs. Overall, I accept Mr Mason does not usually require assistance from other people to perform self-care tasks such as washing and drying his lower limbs.[69]
[69] JTB, A6, Report Ms Upham dated 30 July 2024 page 158
Dr Ahuja states ‘he is unable to do his own cooking, washing and is dependent on others for most of his tasks required everyday’.[70] Mrs Mason describes in their letter appealing Ms Nicholls report that with showering ‘water or clothing touching a person with CRPS can be sensed by the nervous system as a scolding. Dave describes the pain as boiling water thrown over the skin and pain as severe’.[71]
[70] JTB, A2, Dr Ahuja letter dated 30 October 2023 page 111
[71] JTB, A5, Letter Mr and Mrs Mason undated page 139
In relation to personal care Mrs Mason explains that[72]:
[72] ibid
Dave uses the wall to maintain his balance when getting on and off the bed.
The bed is also at waist height to make it easier for him to manage.
He uses the towel rail to assist getting on and off the toilet.
He uses the frame of the shower to assist getting in and out of the shower. The cubicle is too small to put a shower chair in so he balances holding the wall while showering. He also uses the door frames to assist with balance going up the small step to the house as shown in the photos attached to the report. Although these are not mobility aids recommended by a Occupational therapist they are still aids to enable him to manage the tasks. Therefore, this is not considered being unassisted’.
The Tribunal notes Mrs Mason’s frustration with the term ‘unassisted’ minimising the lived experience of Mr Mason. It is the Tribunal’s view that the term unassisted in this context is to mean exclusive of the assistance of another person or exclusive of equipment or assistive technology that is not considered ‘commonly used’.[73] In this sense the Tribunal agrees that while Mr Mason uses walls, towel racks, and other household furniture for bracing and support, he can get in and out of bed, on and off the toilet with modified technique and braces himself using shower walls and doors to complete activities of daily living – without the assistance of another person or disability specific assistive equipment.
[73] Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
The Tribunal has previously observed that in relation to self-care, a substantially reduced functional capacity to care for oneself ‘imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and wellbeing’.[74] The Tribunal can only find in respect to the pain condition when looking at Mr Mason’s ability to care for himself – as it is the permanent impairment.
[74] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at 121 applied in VKFW and National Disability Insurance Agency [2024] AATA 1260 at 55.
In considering the evidence before me in respect to Mr Mason I find that:
·Mr Mason can shower himself; he cannot reach his lower extremities and uses a long-handled sponge or allows the soap to run down his legs
·He can shave, brush his teeth and groom himself
·He can dress himself via modified techniques and can don slip on shoes
·He can chew, swallow, eat and drink
·Can take his medications, though opening blister packs can be difficult due to hand grip strength
·He can self-catheterise and toilet, does experience difficulties due to poor hand function
·He can put rubbish bin liners in and take the rubbish bags out of the bin
While I accept that the Applicant’s ability to self-care is impacted by his pain and fatigue, I am not satisfied that his impairments meet the threshold of resulting in substantially reduced functional capacity. The Tribunal finds that though Mr Mason requires assistance with some fine gross motor skills, he does not have ‘significant gaps’ in his capacity to maintain his personal health, safety and wellbeing. The deeming rule is not engaged with respect to self-care. I am satisfied Mr Mason is able to independently perform the tasks of personal care, hygiene, grooming, eating and drinking. He describes using techniques in a modified fashion to dress, shower, eat and drink. Accordingly, I find that the threshold for substantially reduced functional capacity in self-care has not been met.
Mobility
The mobility domain is focussed on ‘how easily you move around in your home and community, and how you get in and out of a bed or chair. We consider how you get out and about and use your arms or legs’.[75] The Tribunal notes that walking is one task within the activity of mobility. It may be a significant part of the activity, but there are other tasks that need to be considered like transfers, reaching, bending, standing, accessing community and essential services.
[75] NDIS Operational Guideline - mobility
Ms Nicholls reported that Mr Mason could stand, transfer and walk without the support of another person and typically mobilise by himself.[76] Ms Nicholls conceded during questioning by Mrs Mason about her mobility assessment, that she had not viewed the push-pull reflex of Mr Mason and she also conceded that she had not physically seen Mr Mason transfer in and out of his car. In explaining this point, she stated that she uses clinical assumptions from other similar functional tasks in order to extrapolate out functional capacity.
[76] JTB, R3, Report of Ms Nicholls dated 7 March 2024 page 214
Mr Mason during his oral evidence explained that he uses a walking stick and has done so for ‘a long time’ and takes the walking stick to appointments. The Respondent asked why he hadn’t mentioned this during his assessments to either Ms Upham or Ms Nicholls and Mr Mason stated that it was likely because they hadn’t asked him. Mr Mason explains that he uses the trolley when at the shopping centre leaning over the handles in order to steady his walking. In her assessment dated 6 November 2023 Ms Kenwright states ‘he has been told he will need a wheelchair at some stage however he is still walking independently without an aid at present’.[77]
[77] JTB, A4 Letter from Ms Kenwright dated 6 November 2023 page 137
A walking stick, a shopping trolley and household walls and furniture are all non-disability specific items or ‘commonly used items’. The Tribunal is satisfied Mr Mason can mobilise inside the home and as required in the community without the assistance of another person or disability specific assistive technology.
I note Mr Mason has a valid drivers licence and Ms Upham’s report states he only drives short distances when he is ‘physically and mentally up to it’.[78] Ms Upham states that she has concerns after undertaking her assessment, with Mr Mason’s cognition as it relates to his safety in driving. She states her opinion that Mr Mason should undergo a driver reassessment regarding his continued validity to drive.
[78] JTB, A6, Report Ms Upham dated 30 July 2024 page 158
Ms Upham in her second report dated 15 November 2024 states Mr Mason’s ‘walking ability has observationally deteriorated. David needs to rest after approximately 30 meters. This is as reducing capacity down from 100 meters 6 months ago’.[79] While this is at odds with the opinion of Ms Nicholls at paragraph 120, the Tribunal prefers the evidence of Ms Upham on his walking ability due to its currency and on the basis that Ms Upham has assessed Mr Mason in his current living arrangements. The Tribunal is satisfied overall that Mr Mason can move about the home, undertake sit to stand transfers and move about in the community.
[79] JTB, A7, Report Ms Upham dated 15 November 2024 page 175
Taking into account the totality of what Mr Mason can do, the Tribunal is satisfied that he participates effectively in the activity of mobility and does not consider that the impairments attributable to the pain condition result in substantially reduced functional capacity in mobility.
It may be that a future functional capacity assessment shows that Mr Mason has a substantially reduced functional capacity. As he is under the age requirement, he can apply again for access to the NDIS. Based on the current information before me, I do not consider that Mr Mason has substantially reduced functional capacity to undertake the activity of mobility.
Overall, on the evidence before me about mobility Mr Mason’s circumstances are not captured by rule 5.8 and with respect to the statutory threshold, I am not satisfied that he does have substantially reduced functional capacity in the mobility domain.[80]
[80] JTB, Part A, Respondent’s Statement of Facts Issues and Contentions 13 September 2024 page 10
As 24(1)(c) of the Act is not satisfied it is not necessary for me to consider paragraphs 24(1)(d) or (e) of the Act.
Early Intervention Requirements
The early intervention requirements were not pressed by the Masons. The evidence does not show that provision of early support will reduce Mr Mason’s future support needs relating to the impairments that have been accepted as permanent.
With respect to section 25(1)(b), the evidence does not demonstrate that early intervention supports are likely to benefit Mr Mason by reducing his future needs for supports in relation to his disability. Dr Goucke states that for the pain condition there is little additional evidence-based treatment that can be of benefit and in terms of prognosis it is ‘extremely guarded’.
There is no evidence before me that the provision of early intervention supports would be likely to reduce Mr Mason’s future support needs. The early intervention requirements under section 25 of the Act have not been met.
Conclusion
I find that Mr Mason’s impairments do not result in a substantially reduced functional capacity to undertake the prescribed activities as required under paragraph 24(1)(c) of the Act and therefore does not meet the criteria in either of sections 24 or 25 of the Act.
For that reason, I find Mr Mason does not meet the access criteria on the basis of either the disability requirements or the early intervention requirements of the Act.

Decision

The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
Date of hearing:  18, 19, 20 February 2025
Applicant’s Representative:               Self-Represented
Counsel for the Respondent:             Mr J Sproule, Counsel
Solicitors for the Respondent:           Ms M Dantu-Hann, Moray & Agnew